Cross-examination of child sexual assault complainants: concerns about the application of s 41 of the Evidence Act

Section 41 of the Evidence Act 1995 (NSW), the Evidence Act 1995 (Cth) and the Evidence Act 2008 (Vic) now requires judges to intervene to protect vulnerable witnesses, thereby reducing trauma, encouraging participation in the criminal justice system and ensuring that such witnesses have the opportunity to tell their stories. Some of the most vulnerable witnesses are child sexual assault complainants. For them and for others, the provision is intended to set a new standard for cross-examination. However, a study of experienced prosecution and defence barristers from the Sydney metropolitan region suggests that the provision could fail to meet its objectives. Whilst cross-examiners are required to take to their feet and put their wits against child sexual assault complainants, the line between acceptable and unacceptable cross-examination will be difficult to draw